Ms. Irene Feore
(Represented by the Irish Nurses Organisation)
vs
Alzheimer Society of Ireland
(Represented by Mr. Dowling B.L. instructed by Mason Hayes & Curran, Solicitors)
Summary (1)
Equality Officer Decision DEC-E2006-010 (Coyle G.) 23rd March, 2006
Employment Equality Act, 1998 Sections 6, 8, 16 and 74 - Employment - Discriminatory Treatment - Victimisation - Disability - Reasonable Accommodation
Background:
The complainant commenced employment with the respondent in May, 1997. She held the position of Nurse Manager in Drimnagh Care Centre which she set up and managed. In October, 2002 she got sick and was absent from work for a period of one year. When she received a certificate of fitness to return to work from her GP she informed the respondent and sought a return to work date. The respondent failed to confirm a return to work date and told her that her position as Nurse Manager in the Drimnagh Care Centre no longer existed. The complainant contends that it was only because of her absence on sick leave that the respondent got rid of the Nurse Manager position in the Drimnagh Care Centre. She also contends that the respondent failed to provide reasonable accommodation in relation to her request for part-time work initially. The respondent has denied the allegations.
Conclusions and Decision:
The Equality Officer held that the complainant was treated less favourably on the grounds of disability within the meaning of Section 6(1) and 6(2)(g) of the Employment Equality Act, 1998 when she was not given a return to work date to the position of Nurse Manager in Drimnagh Care Centre. The Equality Officer further held that the respondent discriminated against the complainant when it failed to provide her with reasonable accommodation in the context of Section 16 of the 1998 Act in relation to her request to return to work on a phased basis initially. The Equality Officer ordered the respondent to offer the complainant her full-time position of Nurse Manager in the Drimnagh Care Centre and awarded the complainant €20,000 compensation for stress suffered as a result of the discrimination.
Cases Cited:
Equality Officer Decision - Mr. O v A Named Company - EE/2003/052
Labour Court Determinations:
DEE011 - Dr. T. Mitchell v Southern Health Board (Cork University Hospital)
EED0317 - Customer Perception Ltd v Leydon
ED0259 - A Health & Fitness Club and A Worker
High Court - Anthony Byrne v Dunnes Stores 2001 (2003) ELR 297
1. DISPUTE
1.1 The dispute concerns a claim by Ms. Feore against the Alzheimer Society of Ireland that she has been discriminated against on the grounds of disability within the meaning of Sections 6(1), and 6(2)(g) of the Employment Equality Act, 1998 and in contravention of Section 8 of that Act. The complainant further claims that she was not reasonably accommodated in contravention of Section 16(3) of the 1998 Act. She also alleges that she was subjected to victimisation within the meaning of Section 74(2) of the 1998 Act.
2. BACKGROUND
2.1 The complainant commenced employment with the respondent in May, 1997. She held the position of Nurse Manager in Drimnagh Care Centre which she set up and managed. In October, 2002 she got sick and was absent from work for a period of one year. When she received a certificate of fitness to return to work from her GP she informed the respondent and sought a return to work date. The respondent failed to confirm a return to work date and told her that her position as Nurse Manager in the Drimnagh Care Centre no longer existed. The complainant contends that it was only because of her absence on sick leave that the respondent got rid of the Nurse Manager position in the Drimnagh Care Centre. She also contends that the respondent failed to provide reasonable accommodation in relation to her request for part-time work initially. The respondent has denied the allegations.
2.2 Consequently the complainant referred her complaint of discriminatory treatment and victimisation to the Director of Equality Investigations on 30th March, 2004 under the provisions of the Employment Equality Act, 1998. In accordance with her powers under Section 75 of that Act the Director then delegated the claim to Gerardine Coyle, Equality Officer on 7th February, 2005 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Following receipt of submissions a joint hearing took place on 6th December, 2005. Additional information was received from the parties and the final information was received on 7th March, 2006.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 The complainant is a registered nurse and a registered sick children's Nurse with 34 years of nursing experience. She holds a diploma in management from the College of Surgeons in Ireland. The complainant commenced employment with the respondent organisation at their Day Centre in Drimnagh in May, 1997. She was employed as the Nurse Manager and reported to the National Co-ordinator of Services. According to the complainant she set up the service and managed it without any difficulty until her absence from work on sick leave in October, 2002. Her responsibilities included the administration and management of this centre which provided placement for up to 20/25 clients on a daily basis and was open Monday to Friday. The complainant states that she was also responsible for the management and direction of the work of paid staff (three full-time care assistants, one part-time care assistant, one full-time cook and one full-time ambulance driver). According to the complainant she was responsible for the cleanliness and security of the building and was the nominated key-holder until a security firm took over this responsibility in late 2002. It is the complainant's submission that she was also responsible for financial records including collection and lodgement of monies. In addition to this the complainant says that she had clinical medical responsibilities for the implementation of dementia specific programmes.
3.2 In October, 2002 the complainant developed a back injury and while recovering she developed acute appendicitis. She had surgery on 14th November and developed complications post operatively which warranted two separate admissions to hospital and further surgery due to a diagnosis of vascular necrosis of her right hip. This surgery took place on 4th December, 2002 and the complainant was discharged from hospital on crutches. A further complication warranting manipulation of her shoulder under general anaesthetic developed and the complainant was admitted to hospital in June, 2003 for this procedure. According to the complainant she suffered bereavement at this time when her brother (to whom she was very close) died suddenly. The complainant was diagnosed with having reactive depression and she was prescribed anti-depressant medication by her G.P. She was recovering from this when she developed shingles on 20th September, 2003.
The complainant states that she continued with her medication and physiotherapy and recovered well. On the advice of her GP she was due to return to work on the basis of a short week (i.e. three days initially) to allow her to complete her course of physiotherapy and medication. According to the complainant she spoke with the Regional Manager on 28th October, 2003 about returning to work. The Regional Manager commended her on the work she had already done in the Day Centre. The complainant states that the Regional Manager did not express any difficulty with her returning to work on the basis of a reduced working week initially. On 19th November, 2003 the complainant met with the Regional Manager and outlined her medical history in detail. It is the complainant's submission that she was advised by the Regional Manager that her return to work was dependant on a consultation with the respondent's medical advisor.
3.3 On 20th November, 2003 the complainant attended the respondent's medical advisor who certified her fit to return to work and advised of her GP's advice to return for an initial period of reduced hours with a view to returning to full time work. According to the complainant she was told by him that his medical opinion would be available in writing the next day to the respondent organisation. The complainant states that no date for return to work was communicated to her after this positive consultation. Between 22nd November, 2003 and 12th January, 2004 the complainant says she made numerous efforts to secure a return to work date. On 4th December, 2003 the Union, on behalf of the complainant, wrote to the Human Resource Manager of the respondent organisation requesting a date on which the complainant could return to work. On 9th December, 2003 a response was received from the respondent organisation in which it was stated:
"I understand Irene Feore's wish to have a date confirmed for her return to work. However as she has been absent on sick leave for over a year and she is proposing to return to work on a three day week basis initially we need to consider what is the most appropriate arrangement for her and our service. As there are operational and service issues involved as well as a personal issue, Irene's manager will need to be involved in planning and putting in place the part time role for her".
The Human Resource Manager indicated that the Regional Manager would address the matter on her return from holiday on 22nd December, 2003. It was not until 12th January, 2004 that the complainant was able to make contact with the Regional Manager and they agreed to meet on 14th January, 2004.
3.4 It is the complainant's submission that she detected a difference to her previous meeting with the Regional Manager and it became apparent that her request to return to work initially on a part time basis was not being considered. The complainant was told that she could not return to work on a part time basis as Nurse Manager in charge of the Day Centre but she could return on a part time basis as a staff nurse. According to the complainant she was asked to give her response immediately. The complainant indicated that she wished to return to her position as Manager of the Centre but she was told that this was not an option. The Union, on behalf of the complainant, then wrote to the Chief Executive Officer of the respondent organisation on 23rd January, 2004 asking that the complainant be reassigned to all duties allocated to her before her absence on sick leave and an immediate return date to said post. A response was received from the Human Resource Manager dated 27th January, 2004 in which it was stated that the respondent could not facilitate the complainant returning to work in a part time capacity in the job she had occupied prior to her going on sick leave.
3.5 On 18th February, 2004 a meeting was held between the Union, on behalf of the complainant, and the respondent organisation at which the respondent insisted that they could not accommodate a request for part time work. According to the Union the respondent denied that it understood that the request for part time work was for an initial period and stated that their service could not accommodate this. At the meeting the respondent stated that alternative arrangements had been put in place for this service while the complainant was absent on sick leave. The respondent also confirmed that these alternative arrangements had been put in place because the complainant was absent on sick leave and would not have been put in place if the complainant had not been so absent. On 8th March, 2004 the Union again wrote to the respondent contesting the respondent's account of the meetings with the complainant and asking that she be allowed to return to her contracted position. Then on 18th March, 2004 the respondent replied stating that part time work could not be accommodated in the Nurse Manager position and that the society had restructured itself during the complainant's absence on sick leave. It was at this point that the Union, on behalf of the complainant, referred the matter to the Equality Tribunal. The Union notes that further meetings were held to endeavour to return the complainant to her contracted position as Nurse Manager but to no avail. The current position is that the complainant has not been able to return to work despite being certified by two medical practitioners as being fit for employment.
3.6 Following from the Labour Court Determination in the case of Dr. Teresa Mitchell v Southern Health Board (Cork University Hospital) (2) the complainant states that she will show that a prima facie case of discrimination exists by establishing that:
- she is covered by the discriminatory ground
- she has been subjected to specific treatment
- this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground would be treated.
3.7 The complainant says that she has been diagnosed as suffering from a variety of injuries and illnesses as set out in paragraph 3.2 above. It is her contention that these injuries and illnesses amount to disabilities within the meaning of Sections 2(1)(b) and 2(1)(c) of the Employment Equality Act 1998. In this regard the complainant cites the Labour Court case of Customer Perception Ltd v Leydon (3) in which the Labour Court determined that injuries sustained in a road traffic accident which caused pain and reduced movement in the complainant's shoulder, back and neck amounted to disability within the meaning of the legislation. The complainant also notes the Equality Officer Decision in the case of Mr. O v A Named Company (4) held that the complainant's illness (he suffered from anxiety and depression) came within the meaning of Section 2(1)(e) of the 1998 Act. The complainant further relies on the Labour Court Determination in the case of Customer Perceptions Ltd v Gemma Leydon (5) in which the Labour Court held that a temporary disability comes within the meaning of disability under Section 2(1) of the 1998 Act. On the basis of all of the above the complainant notes that she has been certified as having a number of illnesses, conditions and physical malfunctions-temporary disabilities, all of which come within the meaning of Section 2 of the 1998 Act.
3.8 It is the complainant's contention that she has been refused permission to return to her contracted position as Nurse Manager following a period of sick leave despite having been declared fit to resume work by her GP and the respondent's medical advisor. Furthermore when she sought to resume work on a part time basis this was denied. The complainant notes that after she completed her physiotherapy in November, 2003 and her medication course in December, 2003 she advised the respondent that she no longer needed to be accommodated with part time work and that she could return to work full time. In response the respondent stated that the complainant could not return to the same position as she had held before her absence on sick leave rather her return to work would be to a position which was without any managerial responsibility and would be on a part time basis. The alternative to this was that she would accept a redundancy-like arrangement. Following numerous meetings with the respondent the offer was expanded to one 8 hour shift as nurse in charge of a new centre in a different location and 2½ days in a liaison/ assessment position. This would have increase the original offer of 20 hours to 36 hours and involve the complainant occupying three different positions in three different locations. The complainant notes that the extension of the original offer was made three months after the referral of her claim to the Equality Tribunal.
3.9 It is the complainant's contention that she has been discriminated against on account of her disability in accordance with Sections 6(1) and 6(2)(g) of the 1998 Act and that this treatment is less favourable than the way another employee who is not covered by the disability would be treated. According to the complainant she was discriminated against when she was not allowed to return to work in her position as Nurse Manager following her absence due to a temporary disability. The complainant says that the respondent had stated that it was her absence which was the reason why she could not return to her position and the complainant notes that her absence was due to a series of disabilities. It is the complainant's submission that, on more than one occasion, the respondent had stated that had she not been absent on sick leave she would have retained her managerial position. The complainant notes that where Nurse Managers exist in other Centres the respondent has not attempted to strip them of their managerial duties, to unilaterally change their contracts of employment or to attempt to cut their hours of work. It is the complainant's submission that where other staff members have been on extended leave other than sick leave they have been returned to their jobs, particularly maternity leave. The complainant states that the Chief Executive Officer, who was on sick leave for an extended period, was replaced during this period and reverted to his position when medically advised. Also another Nurse Manager who was absent on sick leave with a back injury for a year between 1998 and 1999 (and whose job was shared between two nurses) resumed her position as Nurse Manager on a full time basis when medically fit. On the basis of the above the complainant contends that she has established a prima facie case of discrimination and the burden of proof shifts to the respondent to rebut the presumption of discrimination by showing that it did not unlawfully discriminate against her.
3.10 The complainant says that it is for the respondent to establish that its decision not to allow her return to work as Nurse Manager was because of reasons other than her disability. It is her contention that during all the meetings that have taken place and the correspondence that has been exchanged the respondent has not been able to demonstrate any grounds on which it based its decision not to allow her to return to her position as Nurse Manager. The complainant says that the respondent has argued that it undertook restructuring in her absence and that there was no longer a need for Nurse Manager posts but the complainant denies that this is the case as in July, 2004 she was offered a one day a week Nurse Manager position in the Taney Centre. According to the complainant she was never informed, during her sick leave, that her position would not exist or that her position was being restructured. She had received correspondence from the Human Resource Manager in the respondent organisation in January and April, 2003 and no mention was made to any change in her position. In October, 2003 the Human Resource Manager wrote to the complainant asking to be informed as to when she would be in a position to return to work.
3.11 The complainant notes that Section 16(1) of the 1998 Act does not require an employer to employ any person who is not fully competent and capable to undertake the duties for which they were employed. However she says that before her sick leave absence there had never been a question as to her ability or capability to undertake the duties of her position and she had, on several occasions, been commended for her work. It is the complainant's submission that, in reaching the decision not to allow her return to her managerial position, the respondent ignored the medical opinion of their own medical advisor. The complainant says that it was clear from the respondent's GP's report that she had fully recovered from her physical disabilities, she was mentally well and taking appropriate anti depressant therapy. On this basis the complainant contends that the respondent could not have reasonably come to the conclusion that she was not fully competent or capable of performing the duties as detailed in her contract of employment. The complainant submits that if the respondent did not consider her fully competent and capable of carrying out the duties attached to the post it must have regard to Section 16(3) of the 1998 Act regarding reasonable accommodation. It is the complainant's contention that the respondent failed to provide any reasonable accommodation stating rather that reduced hours (as she had sought for an initial period) were not available in the position of Nurse Manager even though she had been replaced by an acting administrator with no nursing qualifications who was assisted by a part time staff nurse who worked four days per week. The complainant is of the view that the respondent could have facilitated her request for reduced hours by re-assigning the staff member who had been in an acting administrator's position to her contracted duties while the complainant was working and this person could resume the acting administration duties while the complainant was not working.
3.12 The complainant notes that both an Equality Officer and the Labour Court have dealt with similar situations. In the case of Mr. O v A Named Company (6) the Equality Officer found that the complainant was discriminated against by the respondent's refusal of the complainant's request to return to work on a phased basis over 2-3 weeks. Also in the case of Customer Perception Ltd v Gemma Leydon (7) the Labour Court found that an employee was discriminated against when dismissed, following her request for temporary reduced hours to allow her complete her course of physiotherapy following a temporary disability she suffered as a result of an accident. The complainant also notes that the Labour Court was critical of the respondent for not establishing the facts by asking the employee how much time was needed for physiotherapy. While not dismissed the complainant states that she has been prevented from working in her contracted position and has been without salary since October, 2003.
3.13 It is the complainant's contention that, before taking the decision that she could not return to her position, the respondent was obliged to discuss her options with her (see the case of A Health and Fitness Club and A Worker (8)). According to the complainant the respondent failed to do that. Rather she was advised that she could not return to work as Nurse Manager of the Day Centre and that her options were to accept a demotion to a non-managerial position or agree to a redundancy package. The complainant says that there was a distinct difference in approach by the respondent to her following the respondent's medical advisor's assessment of her. This, she notes, was the first formal medical notification of her diagnosis of depression to the respondent. Her own GP had advised the respondent of her physical conditions and post operative complications. Her diagnosis of reactive depression had not been advised to the respondent until 20th November, 2003 and from that date onwards the possibility of her returning to her position of full time Nurse Manager of the Day Centre was not even considered an option by the respondent, despite the positive medical assessment. By not providing reasonable accommodation the complainant contends that the respondent cannot rely on Section 16(3) of the 1998 Act as a defence in this claim of discrimination.
3.14 In the event that the complainant is successful in her claim she requests that the Equality Officer take the following into consideration:
(a) the complainant's wish to return to her contracted position as Nurse Manager at the Curlew Road Day Care Centre;
(b) the fact that the complainant has been without income since 23rd October, 2003 as a direct result of the actions of her employer in not allowing her to return to her contracted position as Nurse Manager, despite having been certified as fit to resume employment by two medical practitioners;
(c) the emotional distress and anxiety suffered by the complainant as a result of the respondent's treatment which was tantamount to a breach of contract entitles her to compensation. In this regard the complainant cites the High Court case of Anthony O'Byrne v Dunnes Stores (9) in which the High Court found that the employee had been treated badly by the employer and that the actions of the employer amounted to a breach of contract causing the employee to become unwell and be certified unfit for work, thus entitling him to damages.
3.15 As a remedy the complainant is seeking a decision by the Equality Officer that the respondent discriminated against her on the grounds of her disability and that she be:
(i) returned to her contracted position;
(ii) compensated for loss of earnings suffered as a result; and
(iii) compensated for the stress and anxiety this discrimination has caused to her.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The respondent accepts that the complainant has at all times performed her duties in a more than satisfactory manner. Furthermore the respondent accepts that prior to her sick leave in October, 2002 the complainant held the managerial responsibilities as outlined by the complainant in her submission (see paragraph 3.1 above). The respondent notes that the complainant commenced a period of prolonged sick leave in October, 2002 which was not without controversy. On 19th January, 2003 the complainant wrote to the respondent complaining that she had been informed by the respondent that her salary was to be or had been halved after 6 weeks sick leave. In the course of said correspondence the complainant attributed various problems with her general physical and emotional wellbeing to the stress of her work with the respondent. The respondent notes that the complainant's salary was not halved at that time and she continued on full pay until May, 2003. Thereafter the complainant's salary was cut to half pay for a further period of 6 months. In October, 2003 the respondent wrote to the complainant pointing out that her entitlement to salary would cease with effect from 1st November, 2003. Following receipt of that letter the complainant contacted the respondent stating that she had a medical report from her GP saying that she was well enough to return to work on a part-time basis.
4.2 While there are a number of allegations and counter-allegations in relation to this issue it is accepted by the respondent that from the outset the complainant stated that she wished to return to work on a part time basis and that she hoped to move to full time work shortly thereafter. The respondent states that it required the complainant to present for a medical examination by their own doctor before returning to work. This examination took place and the respondent's medical advisor confirmed the complainant's own doctor's assessment of her fitness. The respondent denies that there is any foundation for the complainant's claim that she was refused a return to work before December, 2003. It is the respondent's contention that at all times prior to that date the focus of the discussions had been on accommodating a return to work on a part time basis as per her request. The respondent says that at no time prior to February, 2004 did the complainant indicate that she was prepared to return to work on a full time basis. The respondent denies the complainant's contention that it was informed by her in December, 2003 that she no longer needed to be accommodated with part time work.
4.3 The respondent says that during the course of the complainant's absence on sick leave she was replaced in the Drimnagh Day Care Centre by hiring a Relief Nurse and by transferring some of the complainant's managerial duties to a full time Administrator who was already employed by the Centre. According to the respondent the Relief Nurse had already covered for the complainant during other periods of sick leave and holidays. The respondent notes that, in terms of headcounts and resources, the complainant was not replaced by the Administrator. The staffing position in advance of the complainant's sick leave was as follows:
Complainant as Nurse Manager
A full time Administrator
4.5 full time Care Workers
During the complainant's sick leave absence the staffing situation was as follows:
The full time Administrator acting as Manager and working the same number of hours as previous and receiving an additional allowance of €3,370 per annum
Relief Nurse working five four hour days per week
4.5 full time Care Workers
4.4 The respondent says that, during the complainant's absence, it became apparent that it was unnecessary to retain the services of a dedicated Nurse Manager. The Administrator, who was already employed on a full time basis, was able to take over the managerial duties carried out by the complainant. The Relief Nurse was able to perform the nursing duties carried out by the complainant by working 20 hours per week, some 20 hours per week less than those worked by the complainant prior to her sick leave. The respondent stresses that it was dealing with a staff member who was on long-term sick leave and who, at no time, communicated a projected return to work or furnished the respondent with any information concerning the prognosis for her illness. According to the respondent the complainant did not indicate that she would be in a position to return to work until the respondent wrote to her to say that her entitlement to sick pay had been exhausted. The respondent submits that, in the circumstances, it was obliged to put in place proper provision for the running and management of the Centre and it did so in the most cost efficient manner possible having regard to the needs of its patients and clients.
4.5 It is the respondent's submission that, when the complainant indicated that she was in a position to return to work, it was faced with an extremely difficult situation. The respondent is a charitable organisation partly funded by Government funding and by charitable donations. It operates under severe budgetary restraints and its requirement for staff are scrutinised by the Health Service Executive on an ongoing basis. In relation to funding for 2004 the Health Service Executive Agency made it abundantly clear that only pre-approved and vouched funding will be accepted for the coming year. When the complainant indicated that she was in a position to return from sick leave the respondent states that it had the option of restoring her to her previous position, which would have given rise to an increase in salary costs of approximately €17,000 per annum out of a salary budget of €170,000 which would represent a significant increased cost to the respondent. The respondent notes that in February, 2002 the structures of its organisation were reviewed by KPMG and, while the specific reorganisation at issue in these proceedings were not addressed by the consultants, this process did give rise to a general review of the respondent's structures. According to the respondent the structure implemented in the Drimnagh Day Care Centre was also implemented in centres operated in Waterford, Limerick and Ranelagh.
4.6 The respondent says that when the complainant made contact in November and December, 2003 she was offered the nursing hours worked by the Relief Nurse during the period of her absence. It is the respondent's submission that these were the only hours available for a Nurse in the Drimnagh Day Care Centre at that time. The respondent makes the argument that it is necessary to have a full time Administrator in the Drimnagh Day Care Centre who has carried out the role successfully in the absence of the complainant and therefore there was and is no necessity for a full time Nurse or Nurse Manager in the Centre. In the complainant's submission she states that if it were not for the fact that she was on sick leave she would have retained the position of Nurse Manager. The respondent denies that it made this or any statement to this effect. It contends that the complainant has not demonstrated that restructuring in the Drimnagh Day Care Centre was as a result of her disability in the sense that would give her a cause of action under the Employment Equality Act, 1998. The respondent further notes that the complainant's submission does not, in any meaningful sense, analyse the issue of the complainant's comparator for the purposes of the 1998 Act and appears to proceed upon the basis that the restructuring took place by reason of the complainant's disability in the sense that her illness interfered with her ability to carry out her duties going forward.
4.7 The respondent accepts that the complainant is capable of carrying out the full range of duties associated with her position of Nurse Manager. What is clear is that there is a bona fide redundancy situation in relation to that position in the Drimnagh Day Care Centre. The respondent notes that this contention is not seriously challenged by the complainant in her submission which is based on the premise that the complainant has an absolute entitlement to return to work on precisely the same terms and conditions irrespective of any restructuring or changes in the requirements of the respondent's undertaking that has occurred during the course of her absence. It is the respondent's submission that in circumstances where the complainant's contracted position no longer exists; it is nonsensical for the complainant to seek to be returned to that position. The respondent says that if the complainant were to be returned to her previous position (that of Nurse Manager) then she could be made redundant on the basis that the position of Nurse Manager no longer exists. Such a redundancy could not be alleged to be based upon the complainant's disability in circumstances where she would be back at work, working on a full time basis and without any impairment to her health. The respondent states that this fact points to the illogicality of the complainant's allegations. According to the respondent the complainant makes an accusation of discrimination on the grounds of disability in circumstances where there is no evidence that the restructuring had any connection to her illness or injury save that it took place while she was absent on sick leave.
4.8 The respondent states that it made strenuous efforts to accommodate the complainant in a new role. The respondent offered the complainant the nursing hours that existed in the Drimnagh Day Care Centre. When the complainant seemed to be rejecting this offer in February, 2004 because it had no managerial role the respondent endeavoured to create a managerial role for the complainant which would have the effect of increasing her hours. The complainant rejected this offer and insisted on returning to the precise terms and conditions she had prior to her illness. The respondent states that the complainant has consistently refused to give any consideration to any proposed alternative working arrangement.
4.9 The respondent submits that even if it is found to have discriminated against the complainant, any award to the complainant in respect of salary since she became fit/available for work in late 2003/early 2004 should be reduced by the level of salary that would have been payable to her had she assumed the hours offered to her in the Drimnagh Day Care Centre in November, 2003 and the subsequent offers made to her of additional responsibilities in the Taney Centre. It is the respondent's submission that the Drimnagh and Taney Centres are approximately equidistant from the complainant's home. According to the respondent the complainant refused all offers of work made to her notwithstanding that the offers of work amounted to significantly in excess of 50% of her pre-illness contracted hours.
4.10 The respondent submits that the complainant has failed to establish a prima facie case of discrimination. She has not identified a comparator nor has she demonstrated that the restructuring in the respondent's Drimnagh Day Care Centre was in any way as a result of her disability. Even if the complainant has made out a prima facie case of discrimination the respondent submits that the purported discrimination i.e. the restructuring of the Centre was and is justified on objective grounds i.e. the requirement that the respondent carry out its charitable work in the most cost efficient manner possible in the interest of its clients and the State bodies and private individuals that fund it.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision in this claim is whether or not the complainant was discriminated against by the respondent on the grounds of disability within the meaning of Sections 6(1) and 6(2)(g) of the Employment Equality Act, 1998 and did the respondent provide the complainant with reasonable accommodation in terms of Section 16 of the 1998 Act. In making my decision in this claim I have taken into account all the submissions, both written and oral, from the parties.
5.2 Following the hearing of this claim the complainant withdrew in writing her allegation of victimisation within Section 74(2) of the Employment Equality Act, 1998.
5.3 Disability is defined in Section 2 of the 1998 Act as follows:
"(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body;
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness;
(c) the malfunction, malformation or disfigurement of a part of a person's body;
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,
and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person".
I note that the complainant has argued that she was suffering from a disability under the Act (see paragraph 3.7 above). The respondent has made no argument in this regard. I am satisfied that the complainant's absence from work on sick leave constitutes a disability within the meaning of the above definition.
5.4 The complainant contends that she was treated less favourably by the respondent than a person without the disability. She points to the failure by the respondent to facilitate her return to work to her contracted position on a part-time basis initially and full-time shortly thereafter when her course of medication was complete. The complainant was employed by the respondent as a Nurse Manager in Drimnagh Care Centre from May, 1997. She went out of work on sick leave in October, 2002 and for a period of 12 months she suffered from a number of complaints (see paragraph 3.2 above). In October, 2003 the complainant informed the respondent that she had been passed fit by her doctor to return to work initially on the basis of 3 days a week with a view to returning full-time. The complainant was asked to attend the respondent's medical advisor for an assessment as to her fitness to return to work and he concurred with the assessment made by the complainant's own GP. Despite being assessed fit for work the complainant was not given a date for returning to work. The complainant contends that the reason for the respondent's failure to give her a date for returning to work was entirely due to her disability and she alleges that she has established a prima facie case of discrimination on the grounds of disability and that the onus falls on the respondent to justify its failure to provide her with a return to work date to the position of Nurse Manager in Drimnagh Care Centre.
5.5 I note that the respondent has argued that due to restructuring the position of Nurse Manager in Drimnagh Care Centre no longer existed. According to the respondent the reason for the restructuring was driven by the need to reduce expenditure. The respondent is part funded by the State and by voluntary contributions. In 2002 the State grant amounted to €102,000 and this was reduced by 5% to €96,900 for 2003. It is the respondent's submission stated that the reason the complainant was not offered the position of Nurse Manager was that the same service as had been provided in 2002 had to be provided in 2003 but at a reduced cost. The respondent noted that the complainant, by returning to her full time position, would have increased the cost to the organisation by €17,000. According to the respondent the arrangements put in place in the complainant's absence on sick leave was working well and at a reduced cost to the organisation. Prior to the complainant's absence on sick leave the Drimnagh Care Centre was staffed by:
The complainant as Nurse Manager
5.5 full-time Care Workers
While the complainant was absent on sick leave the staffing in the Drimnagh Care Centre was:
A full-time Administrator (and Manager)
Relief Nurse (working five four hour days per week)
4.5 full-time Care Workers
The full-time Administrator was one of the persons who worked with the complainant as a full-time Care Worker (hereinafter to be referred to as Ms. A). She received an additional allowance of €3,370 per annum to undertake the additional duties of manager.
5.6 It is clearly the situation in this case that an arrangement was put in place in the absence of the complainant who was absent on sick leave. The respondent was happy with the arrangement but it was not until after the complainant indicated her readiness to return to work that the arrangement was formalised and Ms. A signed a new contract of employment changing her job title from Care Worker to that of Clerical/Administrative staff. The respondent held the view that the position did not justify a Nurse Manager and that the duties attaching to the position could, just as effectively, be carried out by an Administrator undertaking the managerial functions and a part-time nurse to attend to nursing issues. While the respondent has argued that the complainant's position no longer existed due to restructuring I note that there is no evidence of any reports or documentation relating to any proposed restructuring either in the Drimnagh Care Centre or in relation to Nurse Managers in other locations in the organisation. I am satisfied that, as far as the respondent was concerned, the situation which resulted from the complainant's absence on sick leave worked out well and proved cost effective. Had the complainant not been absent from work on sick leave, there is no evidence to suggest that she would not currently be holding the position of Nurse Manager in Drimnagh Care Centre in the respondent organisation. If, as is alleged, restructuring took place the respondent should have been able to produce documentation to that effect and there was an onus on the respondent to notify the complainant of the proposed restructuring and consult with her regarding same as it impacted on her position in the organisation. This clearly did not happen. Furthermore the fact that restructuring had taken place (as is alleged) was not told to the complainant when it took place or in her initial contacts with the respondent (i.e. the CEO, the Administrator or the Regional Manager) regarding her return to work. In its submission the respondent has stated that the structure implemented in Drimnagh Care Centre was also operated in other Centres in Waterford, Limerick and Ranelagh. There was no evidence that the structures in these Centres were the result of any formal restructuring plan or indeed that they evolved as a result of a Nurse Manager been absent from work on sick leave. The respondent has not produced any evidence to lead me to the conclusion that the position of Nurse Manager in Drimnagh Care Centre would have been abolished if the complainant had not been absent on sick leave. I understand the requirement on the respondent to curtail expenditure but the respondent must be mindful of its obligations under the provisions of the Employment Equality Act, 1998. I, therefore, find that the complainant was discriminated against on the grounds of disability by the actions of the respondent.
5.7 The complainant contends that the respondent failed to provide her with reasonable accommodation in terms of Section 16 of the Employment Equality Act, 1998 in relation to her return to work. Section 16 of the Act provides:
"(1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual -
(a) will not undertake ... the duties attached to that position or will not accept ... the conditions under which those duties are, or may be required to be, performed, or
(b) is not ...fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.
(3) (a) For the purposes of this Act, a person who has a disability shall not be regarded as other than fully competent to undertake, and fully capable of undertaking, any duties if, with the assistance of special treatment or facilities, such person would be fully competent to undertake, and be fully capable of undertaking, those duties.
(b) An employer shall do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities to which paragraph (a) relates.
(c) A refusal or failure to provide for special treatment or facilities to which paragraph (a) relates shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the employer."
There was no question over the complainant's ability to undertake the duties of Nurse Manager and the respondent accepts that she was fully capable of undertaking those duties. I note that the complainant's own GP and the respondent's medical advisor recommended that the complainant return to work on a part-time basis initially. The respondent has argued that it did endeavour to facilitate this request but any offers it made were rejected by the complainant.
5.8 The complainant rang the CEO of the respondent organisation to inform him that she had received a fitness to return to work certificate from her doctor. She was told to contact the Administrator or the Regional Manager. The complainant did contact the Regional Manager who was to revert to her about returning to work but failed to do so. The complainant has documented all her attempts to speak with management of the respondent organisation in the period from 24th October, 2003 to 14th January, 2004 when she was offered part-time hours as the Nurse in the Drimnagh Care Centre. I note that this offer of part-time employment, at a lesser position to that held by the complainant prior to her going on sick leave, was made almost 3 months after the complainant informed the respondent of her fitness to return to work and almost 2 months after the complainant was cleared to return to work by the respondent's own medical advisor. I note that the respondent has stated that the complainant failed to clarify for what period she required to work part-time. Had the respondent seriously wished to accommodate the complainant it could have checked this with her or indeed its own medical advisor. At the hearing of this claim the complainant stated that by mid December, 2003 she had finished her medication and was ready to return to work full-time. Hence by the time the respondent made an offer of part-time work to the complainant she was in a position to return full-time. However it is clear that the respondent was not going to offer the complainant her position back and was not going to offer her any other full-time position. Rather she was offered part-time positions in Drimnagh and Taney Centres. An aspect of the work involved going out into the Community. It is the complainant's submission that these offers of employment were made so unattractive that she would be forced to resign.
5.9 I find that the respondent was slow to enter into any discussion with the complainant about her return to work. The complainant had every reasonable expectation of returning to her own position after her sick leave absence. She was absent on sick leave for 1 year and I note that, at no time, during that period did the respondent seek information on her condition or her expected resumption date. I am satisfied that the respondent failed to provide the complainant with any reasonable accommodation in relation to her return to work.
Other Issues
5.10 I note that the respondent, in its submission, has argued that it was only on foot of its letter dated 29th October, 2003 pointing out that her salary would cease that the complainant informed the respondent of her fitness to return to work. I cannot accept that this was the case and note that according to the complainant's own records she contacted (by phone) the CEO of the respondent's organisation on 24th October, 2003 and informed him that she was now fit to return to work. The respondent, during the course of the hearing of this claim, accepted that the complainant did initially contact the CEO about her return to work. Furthermore the complainant had met with the Regional Manager on 28th October, 2003 about her return to work (i.e. prior to the issue of this letter).
5.11 At the hearing of this claim the respondent stated that complainant was in receipt of disability benefit after she had indicated that she was fit to return to work and was still in receipt of this benefit. The respondent, therefore, questioned the complainant's fitness to return to work. The complainant submitted that her ill-health was as a direct result of the respondent's failure to facilitate her return to work on a full-time basis to the position of Nurse Manager in Drimnagh Care Centre. The issue for consideration by me is that of whether or not the complainant was discriminated against on the grounds of disability when she endeavoured to return to work in October, 2003. I am satisfied that, at that time, she was certified fit to return to work by her own GP and the respondent's own medical advisor.
6. DECISION
6.1 In view of the foregoing I find that the Alzheimer Society of Ireland did discriminate against Ms. Feore on the grounds of her disability within the meaning of Sections 6(1) and 6(2)(g) of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act in relation to her return to work following an absence on sick leave for one year.
6.2 I further find that the Alzheimer Society of Ireland discriminated against Ms. Feore when it failed to provide reasonable accommodation in the context of Section 16 of the Employment Equality Act, 1998 in relation to her request to return to work on a phased basis initially.
6.3 In accordance with Section 82 of the Employment Equality Act, 1998 I hereby order the following:
(a) that the respondent offers Ms. Feore her job as Nurse Manager in Drimnagh Care Centre which she would have continued to hold but for the discrimination. The complainant is entitled to this position and salary with effect from the end of October, 2003 on a part-time basis (3 day week) until 1st January, 2004 and full-time thereafter. As this is an order for the payment of income it is subject to taxation. Any income received by the complainant during the period from end October, 2003 to date should be deducted from her salary entitlement; and
(b) that the respondent pays Ms. Feore the sum of €20,000 by way of compensation for breach of her rights to equal treatment under the Employment Equality Act, 1998 and for the stress suffered as a result of the discrimination. This award is not subject to tax.
______________________
Gerardine Coyle
Equality Officer
23rd March, 2006
Notes
(1) This Summary is provided for convenience only and is not part of the Decision for legal purposes.
(2) Labour Court Determination - DEE011
(3)Labour Court Determination - EED0317
(4) Equality Officer Decision - EE/2003/052
(5) Labour Court Determination - EED0317
(6)Equality Officer Decision - DEC-E2003/052
(7) Labour Court Determination - EED0317
(8) Labour Court Determination - ED0259
(9) High Court 2001 ([2003]) ELR 297